Allahabad High Court
Pramod Tiwari vs State Of U.P. Thru. Prin. Secy. Home, ... on 4 October, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Neutral Citation No. - 2023:AHC-LKO:63792 Court No. - 14 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7883 of 2023 Applicant :- Pramod Tiwari Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lucknow U.P. And 3 Others Counsel for Applicant :- Sunita Srivastava,Gargi Prakash Misra,Ravindra Pandey Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.
1. Supplementary affidavit filed on behalf of the applicant is taken on record.
2. Heard Shri Amitabh Tripathi, learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.
3. This bail application has been moved by the accused/applicant - Pramod Tiwari for grant of bail, in Case Crime No.04 of 2023, under Sections 363, 366, 376AB I.P.C. and 5(M)/6 of P.O.C.S.O. Act, Police Station Fatanpur, District Pratapgarh, during trial.
4. Learned counsel for the accused-applicant while pressing the bail application submits that the applicant has been falsely implicated in this case only on account of village politics and he has not committed any offence as claimed by the prosecution.
5. It is further submitted that falsity of the version of the prosecution may be gauged from the fact that the place of occurrence has been shifted not only by the victim but also by the informant. Elaborating further, it is submitted that the incident is shown to have occurred on 08.01.2023 at about 06:00pm, while in January the time of 06:00pm. would be of sunset and therefore, the claim of the prosecution that at the relevant point of time, the prosecutrix was playing is patently false and could not be believed.
6. It is also submitted that to constitute an offence under relevant provision of Indian Penal Code and P.O.C.S.O. Act, the requisite mens rea is required, which is absent in the instant case. It is also argued with considerable force and in this regard a communication of date 12.07.2023 allegedly sent by the Superintendent, District Jail, Pratapgarh has also been highlighted in order to show that the mental status of the applicant is not stable and therefore, he is entitled to be given the benefit of Section 330 of the Cr.P.C.
7. It is next submitted that the whole story as cooked up by the prosecution could not be believed. Applicant is in jail in this case since 10.01.2023 and he is not having any criminal history and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty.
8. Learned A.G.A. for the State vehemently opposes the prayer of bail of the applicant on the ground that allegations of the F.I.R. has been corroborated by the victim in her statement recorded under Sections 161 and 164 Cr.P.C. and victim was aged only about 7 years at the date and time of the alleged incident.
9. It is also submitted that there are independent witnesses, whose statement have also been recorded by the investigating officer, who have corroborated the allegations as occurred in the statement of the prosecutrix recorded under Sections 161 and 164 Cr.P.C. and thus having regard to the fact that the brutality has been committed with an innocent girl of 6-7 years, applicant is not entitled to be released on bail.
10. Having heard learned counsel for the parties and having perused the record, it is evident that the F.I.R. of this case has been lodged by the mother of the prosecutrix on 09.01.2023 stating therein that on 08.01.2023 at about 06:00pm. when the prosecutrix aged about 7 years was playing in the backyard of the house, the accused/applicant had taken her to some lonely place and started molesting her and inserted his hand into her undergarments and despite the resistance shown by the prosecutrix and the neighbour Shubham, who had arrived there, also attempted to rescue the girl but accused did not leave the prosecutrix and attempted to rape her. These allegations have been fortified by the child in her statement recorded under Sections 161 and 164 Cr.P.C. The statement of the prosecutrix was also video-graphed as provided under Section 161(3) Cr.P.C., wherein she has also stated the similar story. There are other witnesses, whose statement have been recorded by the investigating officer, who have also fortified the incident. The minor contradictions, which have been highlighted by learned counsel for the applicant pertaining to the place of occurrence could only be appreciated by the trial court at the stage of trial and it would not be in the interest of justice for this Court to have opined anything with regard to the same. So far as the applicability of Section 328-330 Cr.P.C. is concerned, the same is required to be seen by the trial court as proper application in this regard is required to be moved by the accused, who is claiming insanity and thereafter the procedure as prescribed under Section 328-329 Cr.P.C. would follow and it is only after adoption of this procedure any order could be passed under Section 330 Cr.P.C. Thus in nutshell it would not be proper for this Court to embark upon the jurisdiction, which, in the considered opinion of this Court, is earmarked for the trial court as this Court is only considering the plea of bail of the applicant.
11. Having considered the totality of facts and severity of the allegations levelled against the applicant, in the considered opinion of this Court, no good ground exists in favour of the applicant on the basis of which the facility of bail could be extended. The brutality has been committed with an innocent girl of 6-7 years.
12. Thus having regard to the evidence available on record against the applicant and keeping in view his complicity in the crime, I do not find any good ground to release the applicant on bail. Thus the bail application moved on behalf of applicant - Pramod Tiwari is hereby rejected.
13. During the course of dictation of the order, an order of a Coordinate Bench of this Court dated 10.02.2020 has been placed by learned counsel for the applicant before this Court passed in Criminal Misc. Bail Application No.53774 of 2019 and it is vehemently urged that as this case is identical to the facts of that case, the applicant before this Court be also released on bail.
14. It is to be recalled that every criminal case is having its own flavour, facts and circumstances and therefore, no straight jacket formula could be formulated for being applied to all the factual situations, therefore, the case law relied on by learned counsel for the applicant, in the considered opinion of this Court, is not sufficient enough in persuading this Court to grant the facility of bail to the applicant.
15. Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression of this Court on the merits of the case.
16. Trial court is directed to proceed with the trial and conclude the same at the earliest.
Order Date :- 4.10.2023/Anupam S/-